Opinion analysis: Is the New Deal in new trouble?

Posted Mon, June 22nd, 2015 4:24 pm by Lyle Denniston

Opinion announcement in Horne v. Dept. of Agriculture (Art Lien)

Analysis

One of the more durable legacies of Franklin Roosevelt’s New Deal in the 1930s was the idea that the farm economy can be bolstered by paying growers to keep some of their crop off the market, or paying them not to grow some of it at all. One of those programs ran into a high constitutional fence on Monday, raising at least some question about how long the idea can continue unchanged.

Depending on how farmers, and their lawyers, interpret the new decision in Horne v. U.S. Department of Agriculture, it could pose a threat to a wide range of government subsidy programs that seek to keep crop prices up by keeping supply down. That formula has been used since 1949 for the California raisin industry under a 1937 farm law, but its future is in doubt. What happens to other farm regulatory programs will have to await further development.

The feature of the raisin program that a Court majority condemned constitutionally is that growers are required to turn over full control of a part of their annual crop to the government, to be held off the market temporarily to push up prices for the annual crop as a whole. Whether the growers get anything back, after the government finds ways to dispose of those put in the set-aside bin, was the feature that led the majority to say it is a form of government seizure for which the growers must get fair compensation under the Fifth Amendment.

Although eight of the nine Justices agreed that the raisin program does involve a form of “taking” private property for public use, three of those eight split off from the others on the question of whether the amount the growers were now due for the takeover of their raisins could be settled now.

The three partially dissenting Justices wanted the case sent back to lower courts to weigh whether the raisin-growing family that challenged the program was entitled to any compensation, because they may have benefited financially from the better prices that raisins supposedly got because of the market effects of the government set-aside regime.

The other five Justices supported, as the compensation now due, the release of the family from a duty to pay the Agriculture Department a fine of $483,843.53, plus a civil penalty of about $200,000. Because those five had the votes to control the outcome, the case is now over with the waiver of that obligation.

The ninth Justice, Sonia Sotomayor, dissented, arguing that the raisin growers were not deprived of all of their ownership interests in the raisins that they had to hand over, and thus there was no “taking.” Sotomayor disputed the majority’s claim that it was not threatening other forms of agricultural subsidy programs, ones that do not have the takeover of full control of the set-aside part of the crop.

The Department of Agriculture has said that there are seven existing programs, including the one for raisins, that operate on the set-aside principle, in which the farmer loses control of the crop turned over to the Department. The others involve California almonds, dates, dried prunes, and walnuts, plus tart cherries grown in seven states and spearmint oil produced in five states.

Chief Justice John G. Roberts, Jr., in writing for the majority, said that the Court was only dealing with a situation in which the owners of the raisins actually had the raisins taken away from them and put under government management. That was the equivalent, Roberts wrote, of the government physically taking over private property just as if it had seized the raisin growers’ land. The Constitution makes no distinction, the main opinion said, between complete government takeover of real estate and personal property.

The parts of the Roberts opinion that condemned the raisin program seemed to make it at least arguable that a farm program regime that merely regulated how much of a crop could go to market, instead of putting it totally under government control, might not offend the Constitution.

The Roberts opinion was joined in full by Justices Samuel A. Alito, Jr., Anthony M. Kennedy, Antonin Scalia, and Clarence Thomas. Justice Stephen G. Breyer, in an opinion joined by Justices Ruth Bader Ginsburg and Elena Kagan, went along with the majority on the “taking” conclusion, but disagreed on how to calculate the compensation due.

On Thursday, the justices met for their May 23 conference; John Elwood's Relist Watch compiles the petitions that were relisted for this conference.

Major Cases

Department of Commerce v. New York(1) Whether the district court erred in enjoining the secretary of the Department of Commerce from reinstating a question about citizenship to the 2020 decennial census on the ground that the secretary’s decision violated the Administrative Procedure Act, 5 U.S.C. 701 et seq; (2) whether, in an action seeking to set aside agency action under the APA, a district court may order discovery outside the administrative record to probe the mental processes of the agency decisionmaker -- including by compelling the testimony of high-ranking executive branch officials -- without a strong showing that the decisionmaker disbelieved the objective reasons in the administrative record, irreversibly prejudged the issue, or acted on a legally forbidden basis; and (3) whether the secretary’s decision to add a citizenship question to the decennial census violated the enumeration clause of the U.S. Constitution.

Lamone v. BenisekIn case in which the plaintiffs allege that a Maryland congressional district was gerrymandered to retaliate against them for their political views: (1) whether the various legal claims articulated by the three-judge district court are unmanageable; (2) whether the three-judge district court erred when, in granting plaintiffs’ motion for summary judgment, it resolved disputes of material fact as to multiple elements of plaintiffs’ claims, failed to view the evidence in the light most favorable to the non-moving party, and treated as “undisputed” evidence that is the subject of still-unresolved hearsay and other evidentiary objections; and (3) whether the three-judge district court abused its discretion in entering an injunction despite the plaintiffs’ years-long delay in seeking injunctive relief, rendering the remedy applicable to at most one election before the next decennial census necessitates another redistricting.

The American Legion v. American Humanist Association(1) Whether a 93-year-old memorial to the fallen of World War I is unconstitutional merely because it is shaped like a cross; (2) whether the constitutionality of a passive display incorporating religious symbolism should be assessed under the tests articulated in Lemon v. Kurtzman, Van Orden v. Perry, Town of Greece v. Galloway or some other test; and (3) whether, if the test from Lemon v. Kurtzman applies, the expenditure of funds for the routine upkeep and maintenance of a cross-shaped war memorial, without more, amounts to an excessive entanglement with religion in violation of the First Amendment.

Gamble v. United StatesWhether the Supreme Court should overrule the “separate sovereigns” exception to the double jeopardy clause.

Recent Decisions

Herrera v. Wyoming Wyoming’s statehood did not abrogate the Crow Tribe’s 1868 federal treaty right to hunt on the “unoccupied lands of the United States”; the lands of the Bighorn National Forest did not become categorically “occupied” when the forest was created.

Merck Sharp & Dohme Corp. v. Albrecht “Clear evidence” that the Food and Drug Administration would not have approved a change to a drug’s label – thus pre-empting a state-law failure-to-warn claim – is evidence showing that the drug manufacturer fully informed the FDA of the justifications for the warning required by state law and that the FDA, in turn, informed the drug manufacturer that the FDA would not approve a change to the drug’s label to include that warning; the question of agency disapproval is primarily one of law for a judge to decide.

Current Relists

Conference of May 23, 2019

al-Alwi v. Trump (1) Whether the government’s statutory authority to detain Moath Hamza Ahmed al-Alwi has unraveled; (2) whether, alternatively, the government’s statutory authority to detain al-Alwi has expired because the conflict in which he was captured has ended; and (3) whether the Authorization for Use of Military Force authorizes, and the Constitution permits, detention of an individual who was not “engaged in an armed conflict against the United States” in Afghanistan prior to his capture.

Box v. Planned Parenthood of Indiana and Kentucky Inc. (1) Whether a state may require health-care facilities to dispose of fetal remains in the same manner as other human remains, i.e., by burial or cremation; and (2) whether a state may prohibit abortions motivated solely by the race, sex or disability of the fetus and require abortion doctors to inform patients of the prohibition.

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On March 30, Justice Clarence Thomas spoke with former clerk Brittney Lane Kubisch and Pepperdine University President-elect James Gash at Pepperdine University School of Law. Thomas told the audience that he had no plans to retire from the Supreme Court.